Fortune v R [2014] NZCA 319 (14 July 2014)

Last Updated: 27 July 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA383/2013 [2014] NZCA 319
BETWEEN	CHAD FORTUNE Applicant
AND	THE QUEEN Respondent

Hearing:	7 July 2014
Court:	Wild, Ronald Young and Cooper JJ
Counsel:	G A Walsh for Applicant BCL Charmley for Respondent
Judgment:	14 July 2014 at 10.30 am

JUDGMENT OF THE COURT

The application to extend time for filing of appeal against sentence is refused.
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REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

[1] In the midafternoon of 27 May 2011 a man was walking home from work in Hamilton. He was attacked by two others, one of whom was the applicant. The victim was punched and kicked. The applicant pleaded guilty to injuring with intent to injure and theft arising from this incident.
[2] On 23 August 2012 Mr Fortune was sentenced to two years and one month’s imprisonment by Judge Tompkins in the Hamilton District Court.^[1] He now seeks leave to appeal the sentence given. His appeal was filed in June 2013. He says the sentence was manifestly excessive.
[3] Mr Walsh sought an adjournment of the appeal. He advised he had only received late instructions to appear. We refused the adjournment. This appeal has already been substantially delayed and Mr Fortune’s final sentence date is now well passed (26 June 2013).
[4] Mr Walsh was able to identify a number of points in support of the appeal.
[5] As to the applicant’s application to extend time to file the appeal, the appeal was originally mistakenly filed in the High Court in February 2013 (although it was by then out of time). The appeal was filed in this court in June 2013. Shortly afterwards, then counsel for Mr Fortune (not Mr Walsh) advised that he was instructed to abandon the appeal. The appeal was then adjourned to allow a notice of abandonment to be filed but counsel was not able to obtain further instructions from Mr Fortune.
[6] Counsel who filed the original appeal also filed a memorandum in support of the application to extend time for filing the appeal. In that memorandum counsel advised that the original appeal was by error filed in the High Court on 5 February 2013. The sentencing date was 23 August 2012 and so the attempt at filing an appeal was by that stage approximately four months out of time. There were then apparently further delays by Mr Fortune who did not sign and return a further notice of appeal for some six weeks and then a further unexplained delay of five weeks until the appeal was ultimately filed in this Court in June 2013.
[7] We are satisfied the application to extend time to file the appeal should not be granted. No satisfactory explanation is given for the delay and we consider there is no merit in the appeal. Further, Mr Fortune has now served his sentence.
[8] As to the merits of the proposed appeal, this was an unprovoked attack by two men on one. The attack began with Mr Fortune assaulting the victim from behind. Mr Fortune’s coaccused then also began punching the victim. Mr Fortune tried to take the victim’s backpack. The victim ran off chased by the two men. He was caught by Mr Fortune, who put him in a choker hold while the other man punched the victim. He was then kicked in the head and torso. After he escaped Mr Fortune took his backpack. The victim had bruises to his forehead, a large bruise and cuts to an eye, and cuts and bruising to his face.
[9] At sentencing the Judge accepted that Mr Fortune was the instigator of the incident and adopted a starting point of two years’ imprisonment. He uplifted the start sentence by three months given Mr Fortune was on bail at the time he offended and had previous convictions for violence. The Judge reduced the start sentence by two months for Mr Fortune’s post-committal guilty plea.
[10] Counsel for Mr Fortune raised three points in support of the claim that the sentence was manifestly excessive. First, while the start sentence was properly within band two of R v Harris (the then relevant authority), it was wrongly at the top end of that range.^[2]
[11] Secondly, the deduction for Mr Fortune’s guilty plea was inadequate. The original indictment had charges of aggravated robbery, injuring with intent and theft. The guilty plea was entered after the Crown agreed to a discharge on the aggravated robbery charge. Mr Fortune then pleaded to the two remaining charges.
[12] Finally, Mr Fortune says the Judge was wrong not to give any deduction for remorse given the comments made in his presentence report.
[13] We are satisfied the start sentence was well within the range suggested by Harris. This was an unprovoked street assault by two men with a moderate level of violence.
[14] The three month uplift for the applicant’s lengthy previous conviction list, including 10 convictions for violence and offending while on bail was modest.
[15] The deduction for Mr Fortune’s guilty plea of two months was also modest but not outside the range available. We note Mr Fortune had the benefit of the Crown not proceeding on the most serious charge. Mr Fortune could have entered an early guilty plea to the two charges he accepted.
[16] As to remorse, there is nothing in the presentence report or elsewhere to suggest Mr Fortune is remorseful for the offending. On the contrary, as the report notes, Mr Fortune tried to shift the blame for the assault to his cooffender and the victim. The final sentence of two years and one month’s imprisonment was neither manifestly excessive nor wrong in principle.
[17] The application to extend time to file the appeal is refused.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Fortune DC Hamilton CRI-2011-019-3994, 23 August 2012.

^[2] R v Harris [2008] NZCA 528 at [10]. We note that Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 is currently the guideline judgment for the offence of injuring with intent to injure. However, as stated in [45] of Nuku, we must consider Harris on this application as Mr Fortune’s sentence was imposed before Nuku was released.